User:Anya Anand/sandbox

= Daubert Standard =

History
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According to a 2002 RAND study, post Daubert, the percentage of expert testimony by scientists that was excluded from the courtroom significantly rose. This rise likely contributed to a doubling in successful motions for summary judgment in which 90% were against plaintiffs. Beyond this study, there is little empirical evidence of the impact of Daubert. However, some critics argue that Daubert has disrupted the balance between plaintiffs and defendants, "The exclusion of expert testimony affects plaintiffs far more than defendants because plaintiffs may then not be able to meet their required burden of proof. Furthermore, there is little point in plaintiffs going to the expense of Daubert motions to exclude defendant's experts until they know if their case will proceed. So if more experts are now being excluded, then Daubert has undoubtedly shifted the balance between plaintiffs and defendants and made it more difficult for plaintiffs to litigate successfully." Similarly, Daubert hearings can be subject to various abuses by attorneys attempting to bolster a weak case. These tactics can range from simply attempting to delay the case to driving up the costs of the litigation forcing settlement.

A different pattern has emerged in criminal cases. In criminal cases, the prosecution has the burden of proof and uses a host of forensic science methods as evidence to prove their case; but Daubert motions are rarely made by criminal defendants and when they do, they lose a majority of the challenges. Some critics of the use of unreliable science in court argue that Daubert has had beneficial effects in civil litigation, but fails to address the underlying pathologies of the forensic science system that leads to dubious verdicts in criminal cases.

Some commentators believe that Daubert caused judges to become—in the phrase used in former Chief Justice William Rehnquist's dissent in Daubert—amateur scientists, many lacking the scientific literacy to effectively fulfill their role as gatekeeper of scientific evidence. Although "science for judges" forums have emerged in the wake of Daubert in order to educate judges in a variety of scientific fields, many are still skeptical about the usefulness of the Daubert standard in discerning valid science. The responsibility to assess scientific relevance has shifted from highly trained expert witnesses to judges deficient in science education. The "Daubert" ruling furthermore admits the possible introduction of non-peer reviewed data and conclusions. This increasingly shifts the burden of scientific judgement onto judges who have not had an education which would enable them to properly evaluate such data.

Pursuant to Rule 104(a), in Daubert the U.S. Supreme Court suggested that the following factors be considered:


 * 1) Has the technique been tested in actual field conditions (and not just in a laboratory)?
 * 2) Has the technique been subject to peer review and publication?
 * 3) What is the known or potential rate of error?
 * 4) Do standards exist for the control of the technique's operation?
 * 5) Has the technique been generally accepted within the relevant scientific community?

The Supreme Court explicitly cautioned that the Daubert list should not be regarded by judges as "a definitive checklist or test..." Yet in practice, judges have judged the admissibility of scientific evidence using the "Daubert factors" as a checklist; for example, the trial court judge in Kumho admitted to erroneously treating the factors as mandatory.

The Daubert Standard over the Frye Standard.
There has been a lot of back and forth over the Daubert Standard versus the Frye Standard. But first, in order to understand why there has been discussion about one over the other, it's important to identify the key differences between the two. The Frye Standard is more limiting, focusing on a single question of whether the expert's opinion is accepted by the relevant scientific community of that court case. This is slightly problematic for the plaintiff in a case, as it doesn't allow for an informed assessment of their case, one that would include not only information from various scientific communities, but also different expert witness testimonies to better support the case of the plaintiff. Courts favored this approach (The Frye Standard) because although it was a minimalistic approach in some ways  towards something that could have a huge impact on someone’s life outside of court, it was a concise approach and one that had an easy focus on what most would say is the most relevant information to a court case. There didn’t have to be a long drawn out debate over the relevant information to the case. There was one main source and that was pretty much the extent of an expert witness testimony. Juxtaposed, the Daubert Standard is a more expansive approach to expert testimonies: the judge of the court case essentially acts as the “gatekeeper” and is ultimately the one who decides what information and which testimonies are admissible in the courtroom. Additionally, the judge assesses what information is relevant as well as reliable to depend on in that case. This has become a much more favored standard in courts, because there is much more room for an informed consensus to be formed on the plaintiff and any other parties involved in a given case. It allows for a broader scope of relevant information to be used, which is ultimately more favored by most. However, the only problem that arises with the Daubert Standard is that there is a potential for there to be an abuse of discretion by the judge. Depending on the judge’s motives, background, or beliefs, there could be an overwhelming sway to some relevant information and not other information, which could then again have severe impacts on the court case at hand. So while the Daubert Standard is ultimately favored over the Frye Standard, it’s important to note that the Daubert Standard is still not perfect, and in order to understand it more, it’s crucial to look at the effects it has had in the courtroom.

Impacts of the Daubert Standard
One important way to assess the Daubert Standard and its merits (or lack thereof) is by looking at the effects of it where it is most critical: in the courtroom. Several cases have been affected by what we touched upon in the Daubert vs. Frye section, which is the abuse of discretion. A major case where this even came about was General Electric Co. v. Joiner. The basis of this case was that Robert Joiner had been diagnosed with small-cell lung cancer, and stated that this was induced by toxins in the work environment, at General Electric, later suing them in court. In this case, the district court excluded a certain important expert testimony, which was a testimony that would be able to prove that the toxins and chemicals found at GE actually promote the health problems he was not facing. Ultimately, GE walked off scratch free from the case, due to the judge as the “gatekeeper” to expert witness testimonies decided that this specific testimony would not be admissible in the courtroom, ultimately leading to Robert Joiner suffering the consequences of essentially an abuse of discretion brought upon by the Daubert Standard. Because this standard puts so much of fate and disposition in the judge’s hand, it’s hard to accept the Daubert Standard, as it doesn’t always favor the plaintiff, even if the expert witness testimony is very relevant and could sway the court overwhelmingly. Another use of the Daubert Standard in a court case is the Sands v. Kawasaki Motor Corp, USA. In this case, the plaintiff Megan Sands filed a lawsuit against Kawasaki after being severely injured by falling backwards off a jetski. Sands’ expert testimony was a man Michael Burleson who was an engineer, and presented his version of a safer and alternative jet ski that would’ve avoided such an accident altogether. Initially, the court deemed his testimony inadmissible because they believed there was not enough testing on his new design to substantiate his point. His testimony was thrown out of the District Court. However, later in the Appellate Court, it was deemed that Burelson did not need such extensive testing for his testimony to be admissible, and that there was an abuse of discretion in the district court, ultimately awarding the plaintiff $3 million in the suit. This case ultimately proved that there needed to be an amendment to the Daubert Standard as it is not a  one time said and done rule. Unlike what was stated in the District Court, an expert testimony is deemed admissible so long as the technique used in formulating the opinion by the expert is reliable in any sense.

Given these two court cases, it is clear that while on paper the Daubert Standard appears as a broad and inclusive approach to an expert testimony, it is still not completely effective in the way one would imagine when played out in a court case.